On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-05-0675-1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
Defendant Marvin Shayland was indicted for purposeful and knowing murder, felony murder, armed robbery, and weapon-possession offenses. Tried by a jury, he was convicted of the lesser-included offense of reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and acquitted of all other charges. Defendant was sentenced to a term of ten years, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were imposed, as was restitution in the amount of $10,216.40. Defendant appeals. Save for a remand to determine defendant's ability to pay the restitutionary amount, we affirm the judgment of conviction.
This criminal episode arose from an encounter that Paris Stevenson described as defendant's attempted armed robbery of him and his fraternal twin Perrin, and that defendant described as their attempted armed robbery of him. In any event, the encounter turned into a struggle over the robber's gun. It discharged more than once, killing Perrin and wounding Paris.
Around 11:30 p.m. on the evening of January 9, 2004, Paris and Perrin left a friend's house in Paterson, where they had been drinking, walked north on East 16th Street for one block before turning left onto Lafayette Street, and then turned right to reach the nearby train tracks, a popular shortcut. As they were walking along the tracks, Paris saw a man, later identified as defendant, approaching them from the portion of Warren Street east of the tracks. He had a gun and he was crouching, "like he was waiting for somebody to come down." The man stood up when Paris noticed him, demanded "you all's shit," which meant to Paris that they should "give up [their] money."
According to Paris, as the brothers were getting their money, "shots just started going off" from defendant. Perrin was closer to defendant, and when he pointed the gun toward them, Perrin "tried to slap the gun down." Perrin "charged" at him and Paris followed. Paris heard shots and felt that his leg was hit, but he kept charging because he was more concerned about Perrin.
Paris and Perrin managed to pull defendant to the ground and started hitting him. While defendant "still was trying to go for the gun," Paris took out a knife and "just started to stab him." At some point during that struggle Paris became able to see the defendant's face, as if "a hat just came off." Paris then dropped the knife and grabbed the gun himself. He could not get it to function, but he nonetheless pointed it at some people he noticed running toward the scene in order to warn them to stay away.
Paris and Perrin next started "jogging" down Warren Street, but Perrin told Paris to stop. Perrin lay down, and Paris saw Perrin bleed from the mouth as he tried to talk, which made Paris realize that Perrin, too, had been shot. Paris pointed the gun at the approaching people again and told them to stay away from his brother.
Paris then ran across the tracks toward Graham Avenue and went door to door, screaming for someone to call for an ambulance.*fn1 At the corner of Graham and Warren, at the first intersection on Warren west of the tracks, Paris saw a police vehicle approach. He quickly discarded the gun he was carrying for fear of being shot by the police and because someone in the crowd who had gathered, calling Paris by his nickname, warned him to put the gun down.
One of these onlookers was Joseph Peterson, a local drug dealer. Around midnight, he was standing on the corner of Warren and Graham long after others had dispersed when he heard four gunshots at the tracks. Perrin was lying on the tracks calling for help and Paris, who had been standing next to Perrin, crossed the tracks and walked toward Peterson, whom he knew as an acquaintance. Paris was limping and had blood on his boots. He was also carrying a gun and said something like "don't mess with his brother." He seemed disoriented, as if he were high on drugs. As the police were already approaching the scene, Peterson warned Paris to get rid of the gun. Paris then tossed the gun to Peterson, who batted it away as he did with the clear glassine bag of cocaine which Paris also tossed his way.
Sometime later, in order to help Paris, Peterson picked up the gun, put it in his pocket and secreted it underneath an abandoned house one block away. After returning home about 1:00 a.m., Peterson then retrieved the gun a few hours later and brought it to his apartment, where he placed the silver .45 caliber automatic handgun inside a locked yellow duffle bag.
Daniel Findlay, a Paterson police officer, was the first to arrive at the scene on January 10, 2004, at 12:24 a.m. As he exited his car, he recognized Paris, saw that Paris's leg was "covered in blood," and offered assistance. Paris told him that Perrin had been shot and was at the end of Warren Street near the tracks. By then, officers Jack DeSalvo and Miguel Cruz arrived, and Findlay directed them to that location.
There, the officers found Perrin lying on the ground, next to the tracks. He managed to say that he had been shot, but otherwise had difficulty speaking, as he was gasping for air. Cruz accompanied Perrin to the hospital emergency room, where he died later that morning.
An autopsy revealed the cause of death to be a gunshot wound to the chest. The bullet that caused the chest wound entered in front and traveled downward before exiting in back near the lower ribs. Perrin also sustained a gunshot wound to the upper right arm. The entry and exit wounds on the arm were both on the back of the arm, but the State's expert, Andrew Falzon, could not determine what position the arm was in when it sustained the gunshot wound. Falzon also observed "gunshot defects," meaning bullet holes, on Perrin's jumpsuit and sweatshirt. The jumpsuit had three defects in the right upper chest and two on the right sleeve, while the sweatshirt had defects on the right sleeve. The locations of the gunshot wounds were consistent with those defects. Falzon also found gunpowder residue on the sleeve near one of the defects, visible to the naked eye, and explained that gunpowder can travel up to 18 inches, depending on the type of gun and ammunition.
Paterson police detective Steven Sela arrived at the scene at approximately 1:15 a.m. He and DeSalvo searched the scene, and while they found no gun, to the west of the tracks they found five .380-caliber shell casings and a used bullet of the same caliber. They also found a blood-stained black jacket with an orange lining; a camouflage jacket; a green "Army" hat; a wool hat; and another hat that DeSalvo called a "wool-type" hat and Sela called an "open-faced mask." A knife was later found at the scene, as well as a bag of crack, behind a house at the corner of Graham and Warren.
In the meantime, Findlay questioned Paris but got little response, so he called for an ambulance to take Paris to the hospital. In the ambulance, Paris became agitated and "very excited, very distressed" about Perrin's condition. At the hospital, it was determined that Paris had sustained a gunshot wound on one side of his left calf muscle. Officer Douglas Romary, who followed the ambulance to the hospital, was able to question Paris before he was taken to surgery. Paris described the shooter as a black male in his twenties who had a light complexion and was wearing a black ski mask and a black jacket, and he described the gun as a silver semi-automatic handgun. Following surgery, around 3:20 a.m., Paris told police that he had seen the man who shot him and Perrin on previous occasions and that he could identify him, although when shown defendant's photo, Paris said he was too distraught to proceed.
At approximately 1:40 a.m., after Paris had been taken to surgery and while Romary was relating Paris's statement to Detective Rafael Fermin, two nurses informed Romary and Fermin that a black male with several stab wounds had just arrived in the emergency room.*fn2 The man fit Paris' description of a light-skinned black male in his twenties with a stab wound, so Fermin went to the emergency room to interview him. The man identified himself as Marvin Shayland, and Fermin identified him as defendant.
Fermin told defendant that he was investigating a homicide, and defendant denied any involvement. He said that he had been walking from his grandmother's home to his sister's home when he was robbed at the corner of 10th Avenue and East 18th Street. He described the robbers as three black men ...